R. v. Williams Date:, 2017 BCPC 291

Citation: R. v. Williams Date: 20170927 2017 BCPC 291 File No: 24691-K-1 Registry: Hazelton IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. TYLER NICHOLAS GARY WILLIAMS REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE J. T. DOULIS Counsel for the Crown: M. Crisp Counsel for the Defendant: C. Joseph Place of Hearing: Hazelton , B.C. Date of Hearing: July 7 and August 24, 2017 Date of Judgment: September 27, 2017 Introduction [ 1 ] Tyler Williams is charged with assaulting and unlawfully confining T.M. and with breaching his bail conditions by having contact with T.M. All offences are alleged to have occurred on May 10, 2017 near Gitwangaak, B.C.

[ 2 ] Mr. Williams and T.M. had been in an intimate relationship since January 2017. Although they spent most of their time together, they also frequently fought. As a result of an altercation on March 13, 2017, Mr. Williams was bound by an Undertaking to a Peace Officer not to have contact with T.M. Nevertheless, Mr. Williams and T.M. were together at Mr. Williams’ residence on May 10, 2017. They began arguing and T.M. tried leaving, twice. T.M. says initially, Mr. Williams prevented her from doing so. Eventually, T.M. managed to get away and began walking down Highway 37 carrying her belongings. Mr.

Williams followed T.M. and pushed her. Mr. Williams denies T.M.’s allegations. T.M. and Mr. Williams’ altercation on the highway was witnessed by Melany Millar, who was driving on the highway at the time. [ 3 ] This matter came before me for trial on July 7, 2017 and August 24, 2017. I heard evidence from Melany Millar, Constable Cropper and Terese Morgan who testified for the Crown. I heard evidence from Tyler Williams who testified for the Defence. The parties also tendered three exhibits into evidence at trial, namely, court documents relating to Information 24662-1-K, a sketch by Ms.

Millar and a sketch by T.M. At the conclusion of the trial, I heard submissions of counsel and received case law from the Crown. Issues: [ 4 ] The issues raised in this case are as follows: Issue #1: Was Mr. Williams bound by an Undertaking of which he was aware? Issue #2: Did Mr. Williams knowingly or recklessly infringe the conditions of the Undertaking? Issue #3: Did Mr. Williams have a lawful excuse for breaching a condition of his Undertaking? Issue #4: Was T.M. unlawfully confined? Issue #5: Did Mr. Williams assault T.M.?

Uncontested Background Facts [ 5 ] T.M. is 20 years old and resides in Prince Rupert, B.C. T.M.’s mother resides in Gitanyow, B.C. [ 6 ] Tyler Williams is 24 years old and resides with his father in Gitwangaak . [ 7 ] Mr. Williams and T.M. formed an intimate relationship in January 2017. They spent much of their time together, often at Mr. Williams’ residence in Gitwangaak. [ 8 ] On March 15, 2017, Mr. Williams was arrested and charged under Information 24662-1-K with assaulting and threatening T.M. as a result of an incident which occurred on March 13, 2017. Mr.

Williams was released from custody on an Undertaking to a Peace Officer (the “Undertaking”). One of the conditions of the Undertaking prohibited him from having any contact, direct or indirect, with T.M. A certified true copy of Information 24662-1-K and the Undertaking were entered as Exhibit 1 at trial. [ 9 ] Shortly after his release from jail, Mr. Williams began receiving text messages from T.M. Soon the texting led to physical contact and notwithstanding the Undertaking, between March 18, 2017 and May 10, 2017, Mr.

Williams and T.M. spent the majority of their time together. [ 10 ] On the evening of May 9, 2017, Mr. Williams drove to 28 Inn in New Hazelton where he purchased five 473 ml cans of Rockstar Vodka coolers, which contained 6.9% alcohol, and a mickey of Jägermeister liqueur. Mr. Williams consumed approximately three and one-half of the coolers and had a few gulps of the Jägermeister. How much T.M. had to drink is in dispute. [ 11 ] T.M. spent the night at Mr. Williams’ residence on May 9/10, 2017. They slept in Mr. Williams’ bedroom which was in the basement of Mr. Williams’ father’s house.

One of the walls of the bedroom consisted of a bedsheet. The bedroom was furnished with a closet, bed, small TV stand and coat rack. T.M. made a sketch of the layout of Mr. Williams’ bedroom which was entered as Exhibit 3 at trial. [ 12 ] T.M. and Mr. Williams went to sleep between 1 and 1:30 a.m. on May 10, 2017. Mr. Williams woke sometime later and began playing his NHL 17 Hockey game on his Xbox. He did this from the bed in which he and T.M. were sleeping. This activity woke T.M. Mr.

Williams set aside his game and they began arguing. [ 13 ] Tired of arguing, T.M. decided to leave the Williams residence even though it was still very early in the morning. She packed all her belongings into her packsack and duffel bag. When she tried to leave, Mr. Williams blocked the exit from his bedroom with his body. Although he did not touch T.M., he bent his elbows and placed his hands at chest height with his palms facing outward. He did this in his efforts to try and discourage T.M. from leaving. [ 14 ] Eventually Mr. Williams allowed T.M. to leave the residence. T.M. picked up her bags and left and Mr.

Williams followed close behind her. T.M. had not gone far when Mr. Williams caught up with her. He offered to have his father drive her home, which she refused. He handed her his cell phone so she could call her mother and arrange her own ride home. [ 15 ] Eventually Mr. Williams persuaded T.M. to return to his residence. When they returned to the residence, Mr. Williams and T.M. got along for an hour or so and then resumed arguing. T.M. renewed her decision to leave the Williams’ residence and return to her mother’s home in Gitanyow. She picked up her packsack and duffle bag and left. This time, Mr.

Williams did not try and stop T.M. from leaving. [ 16 ] At approximately 8:30 a.m. T.M. began walking down Highway 37 which connects Gitwangaak to Gitanyow. This stretch of highway forms part of a nefarious web known as the “Highway of Tears.”

[ 17 ] Mr. Williams followed and caught up with T.M. when she was on Highway 37. He tried to persuade her to return to his residence, which she refused to do. During their interaction Mr. Williams seized the straps of the packsack T.M. was wearing and T.M. ended up on the ground. [ 18 ] At this time, Melany Millar was driving on Highway 37 on her way to the Kitwanga Elementary School where she worked as a teacher. She witnessed the altercation between Mr. Williams and T.M. Concerned for her safety, Ms. Millar stopped and picked up T.M. At Ms.

Millar’s urging, T.M. reported the incident to the police who attended at the Kitwanga Elementary School and took T.M.’s statement. [ 19 ] On May 10, 2017, Mr. Williams knew he was bound by the Undertaking prohibiting him having contact or communication with T.M. Mr. Williams’ evidence [ 20 ] Mr. Williams described his relationship with T.M. as “pretty good.” Sometimes they would argue, although neither liked arguing. He then claimed T.M. caused him physical injury quite a few times which involved her kicking, punching, scratching, sacking him and pulling his hair.

On one occasion T.M. hit him with a stick in his spine which caused him considerable pain, on another, she gave him a busted lip. [ 21 ] Mr. Williams was released from jail on March 15, 2017, after having been charged with assaulting and uttering threats to T.M. on March 13, 2017. He knew he was not supposed to be in contact with her, but it was T.M. who kept contacting him. She would contact him; she became frustrated and argued with him and ordered him to leave her alone. Mr. Williams would leave her alone.

One half hour later she would contact him again angry because he left her alone. [ 22 ] In the beginning, T.M. assured Mr. Williams she would do her best to have the Crown drop the charges. After Mr. Williams was released from jail, T.M. wanted their relationship to work. They tried to make it work up until T.M.’s birthday when she became angry at a picture Mr. Williams had posted of himself on Facebook. On May 28, 2017, Mr. Williams and T.M.’s relationship ended once and for all. [ 23 ] Mr.

Williams knew he was prohibited by the terms of his bail to have contact with T.M. and T.M. knew the risks he took contacting her. She would threaten to call the police if he did not comply with her requests. May 10, 2017 Incident [ 24 ] After an evening of drinking Rockstar Vodkas and Jägermeister, Mr. Williams and T.M. went to be bed intoxicated. Mr. Williams woke up on May 10, 2017, at 4 or 4:30 a.m. and began playing his Xbox game. T.M. awoke and wanted him to go back to sleep. Mr. Williams wanted to keep playing his game. They began arguing about their respective “exs”. [ 25 ] T.M. wanted to leave and Mr.

Williams did not want her to go. He stood in the exit way and tried to persuade her to stay. It was 5:00 a.m. and both he and T.M. were still intoxicated. He did not want her walking alone at that hour on Highway 37, when it was clearly unsafe to do so. [ 26 ] Although Mr. Williams stood in the exit, T.M. did not try to walk by him. Instead, she began causing a ruckus; she shoved his Xbox to the floor and the small table where it was sitting. Mr. Williams became angry at T.M. wrecking things and let her leave.

Soon he went after T.M. and tried to convince her to return to his residence, but if not, then to take a ride with his father. Mr. Williams did not want T.M. hitch-hiking. T.M. refused to return to his residence and refused Mr. Williams’ offer to have his father drive her home. Mr. Williams used his cell phone to call T.M.’s mother. At first the mother was angry at Mr. Williams for not giving T.M. a ride, and then she tried to convince T.M. to accept a ride from Mr. Williams’ father which T.M. again refused. T.M. ended the call and dropped Mr. Williams’ phone on the highway. [ 27 ] T.M. wasn’t responding to Mr.

Williams’ entreaties, so he returned home. He felt badly that T.M. was still outside in the early hours of the morning. Although it was getting light, the sun was not quite up. Mr. Williams biked back to see T.M. hoping to persuade her to return. He met up with T.M. and after 20 minutes of convincing, she returned to the Williams residence. For an hour or hour and one-half Mr. Williams and T.M. cuddled and made-up; then they began to argue again about their exs. Mr. Williams said both he and T.M. were jealous about each other’s ex-lovers. [ 28 ] T.M. started packing her things and Mr.

Williams “let her leave again.” A couple of minutes later, Mr. Williams went after T.M. He caught up to her walking up the hill on Highway 37. By this time Mr. Williams was sober. He tried to convince T.M. to return to his residence. Mr. Williams grabbed the straps to her packsack. He was more frustrated than angry. Mr. Williams said, “I was trying to convince her to come back because I didn’t want anything bad to happen to her or to me in anyway.” [ 29 ] When Mr. Williams grabbed the straps to T.M.’s packsack, she leaned back with all her weight.

He didn’t shove her, but gently let her down until she was sitting on the ground. Nevertheless, he continued to try and convince her to return. T.M. got up, started to back kick him in his private parts so he let her leave. [ 30 ] That is when Ms. Miller came into the picture. She drove by and pulled off the road ahead. T.M. ran towards Ms. Miller’s vehicle. Mr. Williams tried telling her not to do this to him. He was panicking because he was scared. He didn’t want to get breached. He tried telling her to stop. At this time Ms. Millar was outside her vehicle. She put her hands out in a manner to signal for Mr.

Williams to stop, which he did. Mr. Williams did not swear at Ms. Millar. [ 31 ] Mr. Williams returned to his residence and was arrested a few hours later. When released from jail the following day Mr. Williams had two text messages from T.M. T.M.’s evidence

[ 32 ] T.M. describes her relationship with Mr. Williams as complicated with incessant fighting. She admits that she sent Mr. Williams a text message after his release from jail but denies that after they argued, she would order Mr. Williams to leave, he would comply, and then she would text him and direct him to return to her company. [ 33 ] They began to meet in person after his release because Mr. Williams texted T.M. saying he was really upset and wanted see her. At first they just took a cruise to the lake to talk. T.M. began to spend the majority of her time with Mr.

Williams at his residence at his request and with her acquiescence. May 10, 2017 Incident: T.M.’s version [ 34 ] T.M. went to bed at 1 to 1:30 a.m. on May 10, 2017. She did not have one drop of alcohol because she suffers an allergic reaction after a couple of drinks causing her to get “really sick” with “lots of puking.” [ 35 ] T.M. says that Mr. Williams woke her up at 3 a.m. on May 10, 2017, and they began arguing over another man who had been in T.M.’s past. There was no video game on; there was no discussion of Mr. Williams’ exs. It was Mr. Williams, not she, who was jealous and insecure. Mr.

Williams began calling her down and she became very upset. She told Mr. Williams she did not want to fight and she didn’t want to hear what he had to say. She just wanted to leave. [ 36 ] Mr. Williams accused T.M. of wanting to return to the man they had been arguing about. T.M. was tired of the fighting and did not want to be with Mr. Williams. She collected all her belongings into her pack sack and duffle bag. When she tried to leave Mr. Williams stepped in front of her and blocked her exit with his body. He continued calling her down. He ignored her protests that she did not want to fight. Mr.

Williams again accused T.M. of wanting to return to the man they were arguing about. Ms. Williams told him repeatedly she didn’t want to deal with anything at that time and she just wanted to go home. T.M. denies shoving the table or Xbox. [ 37 ] After blocking her path for a half hour or so, Mr. Williams allowed T.M. to leave the residence. She did not make it to the highway when Mr. Williams caught up with her. T.M. used Mr. Williams’ cell phone to call and tell her mother she wanted to come home.

T.M. denies dropping the phone to the ground after speaking with her mother. [ 38 ] T.M. acknowledged that after some discussion, she agreed that if Mr. Williams could control his anger, they could have a calm conversation. She willingly returned to Williams’s residence and his basement bedroom. They conversed and argued; there was no “cuddling.” T.M. picked up her bags and left for the second time that morning. This time, T.M. made it to Highway 37 with her packsack and duffle bag. After 15 minutes of walking, T.M. saw Mr. Williams running behind her. She was annoyed and frustrated. [ 39 ] Mr.

Williams caught up with T.M. He stood in front of her and tried to impede her walking. He grabbed her packsack straps and sweater together, just above the chest area. He gripped them so tightly that T.M. was unable to release his grip. He started pushing and shoving T.M. preventing her from proceeding on her way. T.M. did not shift her weight in order to fall backwards and she did not kick Mr. Williams. She was trying to get away from him. [ 40 ] Ms. Millar arrived and T.M. ran to her and climbed in her back seat. While leaving she could hear Mr. Williams yelling at her not to go. Once she was inside Ms.

Millar’s vehicle Mr. Williams turned around and went home. [ 41 ] When she arrived at the Kitwanga Elementary School with Ms. Millar, T.M. spoke to the principal. Ms. Millar and the Principal tried to convince her to call the police. [ 42 ] T.M. says although she was aware the highway between Gitwangaak and Gitanyow was part of the “Highway of Tears”, she denies that Mr. Williams raised this concern on May 10, 2017. He was trying to convince her to return to his residence, not to take a safe ride home. Evidence of Ms. Millar [ 43 ] Melony Faye Millar has lived in the New Hazelton area since 2005.

She has been a teacher working in special education since 2004 and resource teacher since 2009. She supports students with special needs and helps teachers integrate into their classroom the technology necessary to support these students. Ms. Millar taught at Kitwanga Elementary school until June 30, 2017, after which she began teaching at the New Hazelton Elementary School. [ 44 ] In the morning of May 10, 2017, Ms. Millar was driving her 2003 four door Jeep Liberty to work. She was chatting to her colleague, Ms.

Brown, who was sitting in the passenger seat. [ 45 ] At approximately 8:30 a.m., while passing by Gitwangaak village on Highway 37, Ms. Millar saw Mr. Williams and T.M. on the side of the road. Although he was wearing a red hoody, Ms. Millar recognized him as a former student of the Hazelton Secondary School. She did not know or recognize T.M. [ 46 ] Ms. Millar slowed her vehicle, concerned that Mr. Williams and T.M. might run onto the road. T.M. was carrying two large duffle bags over her shoulders. It appeared to Ms. Millar that T.M. was trying to run away from Mr. Williams and that he was chasing after her.

Mr. Williams had his chest out, screaming and pushing at T.M. in an aggressive manner. T.M. was screaming and crying and trying to run up the hill, but was struggling to carry her bags and maintain her balance. [ 47 ] While in her vehicle, Ms. Millar could hear that Mr. Williams was screaming and T.M. was screaming and crying. She could not make out their words. [ 48 ] Ms. Millar believed T.M. to be in distress. Ms. Millar pulled over to the side of the road ahead of Mr. Williams and T.M. and shut off her ignition. While remaining in the vehicle, Ms. Millar and Ms. Brown looked back. Ms.

Millar saw T.M. running towards her vehicle and Mr. Williams appeared to be chasing her. Ms. Millar did not get out of her vehicle immediately because she did not know what was going on or whether it would be safe. She determined T.M. was in distress and that she had no choice but offer help. Ms.

Millar got out of her vehicle; Mr. Williams and T.M. were still screaming. Ms. Millar yelled to T.M., “Are you okay? Are you okay?” T.M. screamed, “Help, he’s abusing me.” Ms. Millar motioned for T.M. to come to her car. Meanwhile, Mr. Williams continuedchasing and screaming at T.M. [49] T.M. ran up to Ms. Millar’s vehicle and climbed in the back seat on the passenger side. Ms. Millar got back into her vehicle,closed and locked the doors. She helped T.M. adjust her bags. T.M. was crying loudly; her legs were shaking; her whole body wasshaking. Ms. Millar assured her she was safe and would be okay. Ms. Millar, Ms.

Brown and T.M. remained in the vehicle for amoment; Ms. Millar collected herself and then set out to the Kitwanga Elementary School. [50] Mr. Williams followed T.M. to Ms. Millar’s vehicle. Ms. Millar describes him as being “very, very angry . . . screaming swearwords.” She does not recall Mr. Williams’ specific words but believes he was swearing at her. Once T.M. got into Ms. Millar’s vehicle,Mr. Williams turned around and returned to Gitwangaak. [51] Ms. Millar arrived with her passengers at Kitwanga Elementary School before 9 a.m. and T.M. was still upset. Ms.

Millar tookT.M. to speak to the school principal, and then called the police. [52] Ms. Millar did not detect any alcohol on T.M.’s breath while they were together. [53] Ms. Millar prepared a sketch of Mr. Williams and T.M.’s location when she initially passed them in her vehicle. This sketchwas entered into evidence as Exhibit 2. Constable Cropper [54] RCMP Constable Jordan Cropper was dispatched from the New Hazelton detachment to the Kitwanga Elementary School at8:51 a.m. upon receiving Ms. Millar’s complaint. He arrived at the school and interviewed T.M. at 10:13 a.m.

Although uninjured, T.M.appeared physically upset: her eyes were red and teary, her body was shaking, her voice was shaking and she had difficulty forming herwords. [55] T.M. concluded her statement at 10:45 a.m. Constable Cropper then drove from Kitwanga Elementary School to the Williamsresidence and arrested Mr. Williams for assault and forcible confinement. [56] Constable Cropper noted that both parties were sober. Analysis Assessing reasonable doubt [57] All the offences with which Mr. Williams has been charged require the Crown to prove the essential elements beyond areasonable doubt. In R. v.

W. (D), , the Supreme Court of Canada provided the trial Courts with an analytical frameworkto assess reasonable doubt in the context of conflicting testimony in a criminal trial. This test is reproduced in Greenley at paras. 7-12. Recently, Ontario Court Justice David M. Paciocco, in his paper, Doubt about Doubt: Coping with R. v. W(

D) and CredibilityAssessment, recasts the W(

D) test as follows: a. the trial judge who believes evidence that is inconsistent with the guilt of the accused cannot convict the accused; b. even if the trial judge does not entirely believe evidence inconsistent with guilt, if left unsure whether that evidence is true thereis a reasonable doubt and an acquittal must follow; c. even where the trial judge entirely disbelieves evidence inconsistent with guilt, the mere rejection of that evidence does notprove guilt; and d. even where the trial judge entirely disbelieves evidence inconsistent with guilt, the accused should not be convicted unless theevidence that is given credit proves the accused guilty beyond a reasonable doubt. [58] In W.(D), Cory J. cautions trial judges that an accused’s evidence is not examined in isolation.

Reasonable doubt as to theaccused’s evidence must be determined “in the context of the evidence as a whole.” Assessing Credibility and Reliability [59] Although there are many points of agreement among the witnesses, there are also significant points of disagreement. It is tritelaw that a judge can accept all, some or none of a witnesses’ evidence.

In order to evaluate the evidence, I must assess its credibility andreliability. [60] In order to assess the reliability of a witness’s evidence, I must assess his or her ability to perceive, recall and communicate theevidence. [61] In order to assess the credibility of each witness, I have taken into consideration the following factors: (

a) the internalconsistency with other parts of the witness's evidence given at trial; (

b) the consistency of the witness’s account over time; (

c) theexternal consistency of the evidence with that of other credible witnesses; (

d) any independent physical or documentary evidence; (

e) theinherent plausibility of the evidence; (

f) the ”balance” of the evidence, meaning the witness’s apparent willingness to be fair andforthright; and (

g) to a lesser extent, the attitude and demeanour of the witness. Reliability [62] Although there is some issue as to Mr. Williams’ and T.M.’s level of intoxication in the very early morning hours, I do not find

it was of such degree as to render their evidence unreliable. I find all four witnesses in this trial were able to perceive, recall andcommunicate their evidence reasonably well. T.M. was able to refresh her memory with her prior statement to Constable Cropper giventhe day of the incident and Constable Cropper was able to refresh his memory from his police notes. Applicable Legislation Elements of the Offences Charged [63] With respect to all offences, I find the Crown has proven beyond reasonable doubt the elements of identify of the accused, thetime, date and jurisdiction of the offence.

Specifically, the person before the Court is Tyler Nicholas Gary Williams charged onInformation 24691-1-K; the offences took place in the morning of May 10, 2017 at or near Gitwangaak, British Columbia. [64] I will consider the offences of which Mr. Williams is charged below. Count 3: Breach of Undertaking [65] On March 15, 2017, Mr. Williams was released on the Undertaking which prohibited him from having direct or indirectcommunication with T.M. By Count 3, Mr.

Williams is charged with the offence of breach of undertaking contrary to s. 145(5.1) of theCriminal Code, which states: Failure to comply with conditions of undertaking

(5.1) Every person who, without lawful excuse, the proof of which lies on the person, fails to comply with any condition of anundertaking entered into pursuant to subsection 499(2) or 503(2.1) (

a) is guilty of an indictable offence and is liable to imprisonment for a term not exceeding two years; or (

b) is guilty of an offence punishable on

summary conviction. [66] The elements of the offence of breach of undertaking are similar as those for the offence of breach of recognizance pursuant tos. 145(3) of the Criminal Code, which states: Every person who is at large on a recognizance entered into before a judge and is bound to comply with a condition of that recognizance,and who fails, without lawful excuse, the proof of which lies on that person, to comply with that a condition, is guilty of an offence. [67] Before I can find Mr. Williams guilty of breaching his undertaking under s. 145(5.1) the Crown must prove beyond a reasonabledoubt that: a. Mr.

Williams was bound by an Undertaking entered into under subsection 499(2) or 503(2.1) of which he was aware; b. Mr. Williams committed

an act that was prohibited by the Undertaking; c. Mr. Williams knowingly and voluntarily performed or failed to perform the act which constitutes the actus reus of the offence. see: R. v. Dempster, 2012 BCPC 275 , citing at para. 29, R. v. Custance, 2005 MBCA 23 , leave to appeal to S.C.C.refused (2005), 198 C.C.C. (3d) vi. [68] Once the Crown proves the elements of this offence beyond a reasonable doubt, Mr. Williams will stand convicted unless hecan establish a lawful excuse for not complying with the condition of his Undertaking. In R. v.

Flores-Rivas, 2008 BCSC 1595 ,at paras. 15 and 16, Madam Justice Bennett, refers to R. v. Ludlow, 1999 BCCA 365 , and states: 1. The accused bears the onus to show on a balance of probabilities that he had a lawful excuse for not complying with a condition of hisundertaking or recognizance; 2. The lawful excuse, if accepted, does not relate to an element of the offence so as to mitigate or negative the mens rea.

Rather, ifaccepted by the trial judge, it provides an excuse for his acts or omissions and thereby avoids a conviction that would otherwise result. [69] The phrase "without lawful excuse, the proof of which lies upon him" in the context of s. 145(3) permits an accused to raise adefence absolving him or her of liability despite proof of the actus reus and mens rea beyond a reasonable doubt: R. v. Holmes, (SCC), at paras. 13 and 22. Issue #1: Was Mr. Williams bound by an Undertaking of which he was aware? [70] The Crown entered into evidence as Exhibit 1, a certified true copy of Information and Mr.

Williams Undertaking of March 15,2017. [71] In his evidence Mr. Williams admitted: a. he had seen the Undertaking previously; b. he signed the Undertaking; c. he understood the conditions of the Undertaking; d. the Undertaking contained a condition prohibiting him from communicating directly or indirectly with T.M.;

e. he was aware he was taking a risk contacting T.M.; f. on May 10, he was aware he was breaching the condition of his Undertaking which restricted his contact with T.M.; g. he had contact with T.M. at his residence; h. T.M. could not enter his residence without his permission; [72] In his direct examination Mr. Williams testified: T.M. started running towards the car. I was trying to tell her not to do this to me. I didn’t want anything to happen. Like getting breached or anything like that. I tried telling her to stop. That is when Ms.

Miller was outside the vehicle. [73] I am satisfied the Crown has proven beyond a reasonable doubt all the elements of the wrongful act (the actus reus) of theoffence of breach of undertaking. Mr. Williams knew he was bound by the Undertaking; he knew one of the conditions of thatUndertaking prohibited him from being in communication with T.M.; and he failed to comply with that condition. [74] Ms. Joseph argues that Mr. Williams was misled by T.M. into believing he was allowed contact with her. It is unclear to mewhether Mr.

Williams is asserting the absence of the criminal intent (mens rea) for the offence or advancing the defence of lawfulexcuse. I will consider both arguments. Issue #2: Did Mr. Williams knowingly or recklessly infringe the conditions of the Undertaking? [75] I understand Ms. Joseph to argue that Mr. Williams was in contact with T.M. because he was operating on a mistaken belief hewas permitted to do so as a result of information he received from T.M. This raises the question on whether Mr. Williams was operatingunder a mistake of fact or a mistake of law. I am mindful that what the Crown must prove is that Mr.

Williams intended to commit thewrongful act, in this case being in communication with T.M. The Crown does not have to prove that the Mr. Williams intended tobreach the Undertaking: Custance, at para. 12-13; R. v. Forster, (SCC), para. 14-15. [76] In Custance, the accused was charged with breach of recognizance. He had previously been charged with several offences andreleased on conditions, including that he reside at specific address provided by his AA sponsor, not to move without permission from ajudge, and maintain an absolute curfew. When he was released, Mr.

Custance discovered that his sponsor had not yet obtained keys tothe apartment where he was bound to reside. Mr. Custance testified he knew he would be in breach of the terms of his bail if he did notproceed directly to the apartment. He decided to stay in his car in the parking lot of the apartment building and believed in so doing hewas complying with the terms of his recognizance. When the police discovered the accused was not residing inside the apartmentbuilding, they arrested and charged Mr. Custance with breaching his recognizance. Mr.

Custance raised the defence of mistake of fact. [77] In considering the viability of this defence, in para. 15, the Manitoba Court of Appeal (at para. 15) cites the following passagefrom Pappajohn v. The Queen, (SCC): Mistake is a defence…where it prevents an accused from having the mens rea which the law requires for the very crime with which he ischarged. Mistake of fact is more accurately seen as a negation of guilty intention than as the affirmation of a positive defence.

It availsan accused who acts innocently, pursuant to a flawed perception of the facts, and nonetheless commits the actus reus of the offence. Mistake is a defence though, in the sense that it is raised as an issue by an accused. [78] Steel, J.A., writing for the court (at para. 18) held that unlike a mistake of fact, a mistake of law does not provide a “lawfulexcuse”. An honest but mistaken belief in the legal consequences of one’s deliberate actions does not furnish a defence to a criminalcharge even when the mistake cannot be attributed to the accused’s own negligence. [79] Steel, J.A. concluded that Mr.

Custance’s belief he could reside in the parking lot amounted to a mistake of law. She says (atpara. 17): This was a mistake of law, and such a mistake, unlike mistake of fact, does not negative mens rea. By residing in his car in the parkinglot all weekend (in an attempt to comply with the recognizance), the accused was mistaken about the legal consequences of his actionsand was therefore operating under a mistake of law. [80] Mr. Williams’ own evidence establishes that he was not operating under a mistaken belief he was permitted to have contact withT.M. based on the information she provided.

Even if this were true, which I do not find, this was not a mistake of fact but rather amistake of law. [81] Mr. Williams knew he was bound by the Undertaking and it prohibited him from having contact with T.M. Mr. Williams’mistake was to misapprehend whether Undertaking had been informally varied by T.M.’s expressed desire to have the charges againsthim dropped. This mistaken belief might explain why Mr. Williams thought his deliberate conduct was not a breach of the Undertakingby which he was bound.

Nonetheless, his explanation demonstrates no more than a mistaken belief in the legal consequences of hisdeliberate behaviour. This was exactly the issue in both the Custance and Forster decisions, which the courts found to be a mistake oflaw.

[82] I find that the Crown has proven beyond a reasonable doubt all the elements of the offence under s. 145(5.1), both as to thewrongful act and the criminal intent. Mr. Williams now has the opportunity to prove on a balance of probabilities a lawfulexcuse: Flores-Rivas, R. v. Dempster, 2012 BCPC 275 ; R. v. Truong, 2008 BCSC 1151 ; R. v. Ludlow, 1999 BCCA365 . Issue #3: Did Mr. Williams have a lawful excuse for breaching a condition of his Undertaking? [83] Mr. Williams bears the burden of proving the existence of a lawful excuse on the civil standard of balance of probabilities.

Heargues that T.M. told him that she would do her best to get the charges against him dropped. He admitted he knew the ultimate decisionto proceed with the charges belonged to the Crown and the police. [84] In considering whether Mr. Williams had a lawful excuse for breaching the condition of his Undertaking prohibiting contactwith Ms. Williams, I have considered Custance, Flores-Riva and the B.C. Court of Appeal decision in R. v. Ludlow, 1999 BCCA 365. [85] In Ludlow, the accused was charged under s. 145(2), because he did not attend court for the trial of his assault charge againsthis spouse.

The appellate court found that for all practical purposes, s. 145(3) of the Criminal Code is indistinguishable from s. 145(2)because in both cases a lawful excuse must be made out for a failure to perform the stated obligation. [86] Mr. Ludlow said he failed to attend court because his spouse told him the whole situation was a misunderstanding on the part ofthe police whom she had called while in a drunken state. Mr. Ludlow’s spouse relayed to him her many conversations with the CrownCounsel and the police which resulted in the Crown telling her that the charge would be “struck”. She told Mr.

Ludlow he didn’t have toattend court and he did not do so. Mr. Ludlow was not mistaken about the meaning and effect of a condition of a recognizance orundertaking. He knew he was required to attend court. His flawed perception was his belief the proceedings had been stayed andtherefore was not required to attend court. The trial judge accepted Mr.

Ludlow’s explanation for failing to attend court as true, butinsufficient. [87] The British Columbia Court of Appeal found that the accused’s explanation provided a lawful excuse for his non-appearance inthat he was operating under an honest but mistaken belief that the charge was not proceeding. Speaking for the majority in Ludlow, HallJ.A. asserted (at para. 40) that: The fault or mens rea requirement for this class of offence has a large element of the objective about it.

Conviction can be avoided if anaccused establishes a lawful excuse by a showing of due diligence to satisfy the obligation, including an honest and reasonable belief in astate of facts that would excuse non-attendance. [88] Applying the principles espoused in Ludlow, in order for Mr. Williams’ excuse to be lawful within the meaning of s. 145(5.1), Imust find he had an honest but mistaken belief in the facts that excused his non-compliance with the no contact provisions and that heshowed due diligence with respect to his obligation to satisfy that condition. [89] Firstly, I do not find that Mr.

Williams held an honest but mistaken belief he was not obligated to comply with the no contactprovisions. Mr. Williams’ own evidence shows he was aware that T.M.’s request to have the charges against him dropped did not meanhis Undertaking had expired. Mr. Williams’ fear he would be breached when T.M. ran to Ms. Millar supports this conclusion. [90] Secondly, I do not find Mr. Williams exercised due diligence in determining his continuing obligations.

He provided noevidence suggesting he had asked the police, his bail supervisor or his legal counsel if he was still bound by his Undertaking or the nocontact provisions contained in the Undertaking. Count 1: Unlawful confinement [91]

Section s. 279(2)(

a) of the Criminal Code sets out the offence of forcible confinement. That

section reads:

(2) Everyone who, without lawful authority, confines, imprisons or forcibly seizes another person is guilty of:

a) an indictable offence and liable to imprisonment for a term not exceeding ten years; or (

b) an offence punishable on

summary conviction and liable to imprisonment for a term not exceeding eighteen months. [92] The elements of the offence of forcible confinement were reviewed by the Supreme Court of Canada in R. v. Pritchard, 2008SCC 59 which focused on the requirements for unlawful confinement sufficient to classify a death as first degree murder. Onthe subject of s. 279(2), Mr.

Justice Binnie, writing for the Court, held that the victim was unlawfully confined if “for any significantperiod of time… [she] was coercively restrained or directed contrary to her wishes, so that she could not move about according to herown inclination and desire…” (at para. 24). Binnie J. went on to note that not every offence, in that case a robbery, involved“confinement of the significant duration required to satisfy s. 279(2)” (at para. 26).

Although unlawful confinement does not requireproof of total physical restraint of the complainant, it does require proof that the accused deprived the complainant of her liberty to movefrom one place to another for a “significant” period of time. [93] Forcible confinement, like assault, is a general intent offence: R. v. Snelgrove, 2004 BCSC 102. It only requires minimal intentto effect deprivation of freedom of movement: R. v. S.J.B., 2002 ABCA 143 , at paragraph 41, R. v. Drydgen, 2011 BCSC 393, at paragraph 120, ref’d on other grounds R. v. Drydgen, 2013 BCCA 253.

Issue #4: Was T.M. unlawfully confined? [94] The Crown asserts that when T.M. attempted to leave his residence the first time in the early morning hours of May 10, 2017,Mr. Williams prevented her from doing so. In blocking the exit in the manner he did, Mr. Williams unlawfully confined T.M.

[ 95 ] T.M. testified that Mr. Williams blocked the exit from his room with his body for about one half hour. Mr. Williams admits he did stand in the exit when T.M. tried to leave the first time until she began to cause a ruckus. Mr. Williams said he was trying to persuade T.M. not to leave, primarily because it was early in the morning and unsafe for her to be walking alone at that hour on the “Highway of Tears.” T.M. says Mr.

Williams did not mention this concern to her at the time, although she was aware of the danger. [ 96 ] For the reasons set out below I am not satisfied that the Crown has proven beyond a reasonable doubt the elements of the offence of unlawfu l confinement. a. Mr. Williams stood in an exit to the room which was located between a coat stand and a soft wall constructed from a bedsheet. There is no evidence T.M. tried to walk around Mr. Williams or simply pull back the bedsheet; b. There is no evidence that Mr. Williams touched or threatened T.M. in any way during the period when the Crown says T.M. was confined; c.

Mr. Williams appeared to be restraining T.M.’s departure by his rhetoric; d. Mr. Williams and T.M. engaged in a dynamic where they would get along, then argue, T.M. would try to leave and Mr. Williams would try to convince her to stay. This is what happened twice on the morning of May 10, 2017. The first time Mr. Williams’ efforts resulted in a temporary reconciliation. I am left with the impression that although suffering from battle fatigue, T.M. was still willing to listen to what Mr. Williams had to say and was conflicted about whether she wanted to leave the relationship; e.

I do not find that T.M. was coercively restrained against her wishes for one half hour. Her evidence in her direct examination indicated she had left the Williams residence on only one occasion on the morning of May 10, 2017, and in cross-examination she admits she left on two occasions. I do not believe she was trying to be untruthful; however, I do not find her evidence as to timing or duration reliable; f. In assessing what constitutes “a significant period” of confinement in the circumstances, I find it reasonable for Mr.

Williams to spend some time trying to dissuade T.M. from attempting to walk home or hitch hike on Highway 37 at 5 a.m. I accept Mr. Williams did have a genuine concern for T.M. hitch hiking to Gitanyow from Gitwangaak on Highway 37, as indeed would any responsible adult. Mr. Williams’ evidence on this point is corroborated by his efforts to persuade T.M. to let his father drive her home. T.M. admits she refused this offer. After her refusal, Mr. Williams offered T.M. his cell phone to arrange a ride with her mother, which I gather did not materialize. g. Although I accept Mr.

Williams did not want T.M. hitch hiking on Highway 37 for safety reasons, I also find he wanted T.M. to remain at his residence because he did not want her ending their relationship. I have reached this conclusion because Mr. Williams was upset and angry that T.M. got into Ms. Millar’s car. Mr. Williams did not articulate any safety concerns with T.M. accepting a ride from the Ms. Millar and her female colleague at 8:30 on a Wednesday morning. [ 97 ] Mr. Williams and T.M. had a relationship characterised by periods of intense togetherness interspersed with periods of heated argument.

T.M.’s decision to leave the Williams residence on the early hours of May 10, 2017, and Mr. Williams’ conduct in trying to dissuade her from leaving, is consistent with their ongoing relationship dynamic. I am not convinced on a criminal standard that Mr. Williams coercively restrained or directed T.M. against her wishes by standing in the exit in the manner described and pleading with her to stay. T.M.’s inclination or desire to leave during this period was constrained by her inclination or desire to remain in Mr. Williams’ company. Simply put, Ms. Williams was conflicted about whether she wanted to leave.

Count 2: Assault [ 98 ] On Count 2, the charge of assaulting T.M. contrary to s. 266 of the Criminal Code , the Crown must prove the following essential elements of the offence beyond a reasonable doubt: (

a) Mr. Williams applied force against T.M.; (

b) Mr. Williams intentionally applied the force; (

c) T.M. did not consent to the force Mr. Williams applied; and (

d) Mr. Williams knew that T.M. did not consent to the force he applied. [ 99 ] The Crown must prove beyond a reasonable doubt that Mr. Williams knew that T.M. did not consent to the physical contact. The Crown may do this by: (

a) showing Mr. Williams knew T.M. did not consent; or (

b) showing Mr. Williams knew there was a risk that T.M. did not consent and proceeded in face of that risk; or (

c) Mr. Williams was aware T.M. did not consent, but deliberately chose to ignore this because Mr. Williams did not want to know the truth. Any one of these would be sufficient to establish Mr. Williams’ awareness of T.M.’s lack of consent. See: R. v. A.D., 2010 BCSC 1780 . Issue#5: Did Mr. Williams assault T.M.? [ 100 ] Mr. Williams says he did not assault T.M. on Highway 37 on the morning of May 10, 2017. I do not accept his version of his encounter with T.M. for reasons set out below. a. By leaving the residence the second time with all her belongings, T.M. made it clear she no longer wanted to be in Mr.

Williams’ company. b. Mr. Williams admits that he went after T.M. when she left for the second time and when he caught up to her he grabbed the straps of the packsack she was wearing. He states: I was just trying to get her to come back to my place and I grabbed her - the backpack - straps. I was trying to convince her to come back because I didn’t want anything bad to happen to her or to me in any way. c. I do not believe that Mr. Williams simply gently lowered T.M. to the ground to protect her from falling after she leaned back

and became off-balance. Given T.M.’s state of upset, there was no reason for Mr. Williams to grab the straps to her packsack in the firstinstance except to physically compel her in some way. d. There is no suggestion that Mr. William grabbed T.M.’s packsack straps by accident. Mr. Williams was no longer intoxicatedby 8:30 a.m. on May 10, 2017, at the time this incident occurred. Even so, assault is a general intent offence so Mr. Williams’svoluntary intoxication is not a defence: Snelgrove, at para. 231, citing R. v. Bernard, (SCC).

There is no suggestion Mr.Williams’ degree of intoxication ever approached a state of insanity or automatism as described in Bernard or R. v. Daviault, (SCC). e. I accept as true Ms. Millar’s evidence that when she encountered Mr. Williams and T.M. on the road on the morning of May 10,2017, Mr. Williams was: (

a) chasing T.M.; (

b) screaming at T.M.; (

c) behaving aggressively toward T.M.; (

d) screaming swear words;and (

e) pushing T.M. Ms. Millar was so alarmed at this scene she stopped her vehicle and offered T.M. assistance, even though Ms.Millar was unsure it was safe to do so. When Ms. Millar got out of her vehicle she could tell Mr. Williams was “very, very angry” by hisbody language, his shouting and swearing. Ms. Millar was sufficiently unnerved by the situation she had to collect herself before shecould drive away. f. I accept Ms. Millar’s evidence that it appeared to her that Mr. Williams was chasing T.M. and she was trying to run away fromhim and when invited to do so T.M. ran towards Ms. Miller for help.

I accept that when she got in Ms. Millar’s vehicle T.M. was cryingloudly, her legs and whole body were shaking. I accept Constable Cropper’s evidence that even two hours later when he wasinterviewed her at the Kitwanga Elementary School, T.M.’s eyes were red, she was still upset and shaking and had difficulty forming herwords. g. I accept T.M.’s evidence that Mr. Williams grabbed her packsack straps and sweater together and gripped them tightly enoughso she was unable to move. I also accept T.M.’s evidence that Mr. Williams started pushing her back to his place when she was trying togo the other way.

T.M.’s evidence is corroborated by Ms. Millar who I find to be a reliable and credible eye witness. It is corroboratedto some extend by Mr. Williams’ own admission he grabbed the straps to T.M.’s packsack. It is corroborated by Constable Cropper’sevidence of T.M.’s emotional state when he interviewed her. [101] In assessing Mr. Williams’ evidence in the context of the evidence as a whole, I find the Crown has proven beyond a reasonabledoubt all the elements of the offence of assault as set out above. There is no evidence in the Crown or Defence’s case inconsistent withMr. Williams’s guilt of assaulting T.M.

I do not believe Mr. Williams’ version of the events which transpired on Highway 37 on themorning of May 10, 2017. Evidence which is not believed is not evidence. I find Mr. Williams applied force against T.M. by grabbingT.M.’s sweater and packsack straps and pushing her. T.M.’s lack of consent is evident by her apparent distress at the time. Assessingthe evidence as a whole, I find the evidence I give credit proves Mr. Williams’ guilt beyond a reasonable doubt. Disposition [102] With respect to Count 1, unlawfully confining T.M., contrary to s. 279(2) of the Criminal Code, I find Mr.

Williams not guilty. [103] With respect to Count 2, assaulting T.M. on May 10, 2017, near Gitwangaak, contrary to s. 266 of the Criminal Code, I find Mr.Williams guilty. [104] With respect to Count 3, breach of Undertaking on May 10, 2017, contrary to s. 145(5.1) of the Criminal Code, I find Mr.Williams guilty. “Judith Doulis” _____________________________ J. T. Doulis Provincial Court Judge